Written by Tom Fitton
If you’ve been reading my Weekly Updates for a while, you know that Judicial Watch has been extremely active monitoring terrorist military tribunals at Guantanamo Bay. In fact, JW staff has been on the ground at Guantanamo Bay, Cuba (GTMO), on no less than 12 occasions to monitor key proceedings there, including the 2008 arraignment of 9/11 mastermind Khalid Sheikh Mohammed (KSM), the 2011 arraignment of USS Cole bomber Bad al-Rahim al-Nassir and a number of KSM motion hearings in 2012 and 2013. In fact, one of our attorneys, Ramona Cotca, has been there all this week.
Unfortunately, our regular participation may be about to change.
As first reported by our own blogger Irene Garcia: “In a startling about-face, the Obama administration is restricting exclusive access to Military Commission hearings in Guantanamo Bay to five leftist human rights groups that openly advocate for the terrorist defendants.”
If you would like to receive weekly emails updating you about all of our efforts to fight corruption, please sign up here.
In an official memorandum, issued on August 19, 2013, the Office of the Secretary of Defense listed the criteria by which organizations were selected for the privilege of monitoring GTMO proceedings. They must have a “stated mission to advance human rights through advocacy and respect for the law.”
Here’s the punch line. Take a look at the list of the five pre-approved leftist “non-governmental organizations” that will be given exclusive seats at the table for GTMO military commission proceedings: Amnesty International, Human Rights Watch, Human Rights First, the American Civil Liberties Union and the American Bar Association.
Do you see any “rule of law” organizations on this list? I do not.
Perhaps hoping to head-off any accusations of political favoritism, the OSD indicated in its original memo that the policy change was absolutely necessary due to “logistical limitations.” But that still doesn’t explain why all of the organizations they selected are radically left of center.
And this is precisely the point I made in a letter of appeal sent to the Chief of Staff for the OSD, strongly objecting to the Department of Defense’s new exclusion policy:
I am writing to object in the strongest terms to your August 19, 2013 Non-Government Organization (NGO) Observer Selection Policy to observe commission proceedings at Guantanamo Bay, Cuba (GTMO).
The designation of Amnesty International, Human Rights Watch, Human Rights First, the American Civil Liberties Union and the American Bar Association as essentially “permanent observers” to Commission proceedings is not appropriate.
These groups represent a narrow, extreme ideological view on terrorist detainee issues. These groups, which have been highly critical of the Office of Commissions and GTMO advocate policies at odds with views held by the vast majority of American citizens, whose tax dollars fund the operation of the Office of Commissions and GTMO.
As you may well know, in some instances, persons affiliated with the five NGOs have served as legal counsel or political advocates for the terrorist detainees held at GTMO.”
I close the letter asking OSD to rescind the policy. Failing that, I appeal to OSD to at least reinstate Judicial Watch to the list of permitted observers so that a full range of views on terrorist detainee issues are represented. “Your proposed system could have the effect of freezing out any alternative voices from the NGO community, specifically those voices that have not served as legal and political advocates for terrorist detainees.”
You might be able to guess the type of response that came back.
On September 3, 2013, I received a cut-and-pasted letter ripped from the original August 19 memo. The letter, sent under the signature of Military Commission Chief of Staff Michael Quinn, denies our request and reiterates that the five NGOs “were selected due to their ability to reach an international audience, their experience with international human rights in criminal trials and their stated mission to advance human rights through advocacy and respect for the law.” Of course, Judicial Watch fits all those criteria.
Quinn ends by expressing appreciation for “Judicial Watch’s interest in the conduct of military commissions” and invites JW to watch proceedings on closed-circuit television at Fort Meade, Maryland, if we don’t make the cut for a trip to GTMO.
The Pentagon has yet to provide any response to our concern that they are giving five permanent “observer” seats to what in effect is the defense bar for terrorists. Again, we’re the only conservative organization that has, at great expense, participated as observers in these proceedings. And now we’ve been told that we may not be invited to future 9/11 terrorist criminal proceedings there.
Let me boil this down. President Obama has stated on a number of occasions that he intends to shut GTMO down. He said it during his first presidential campaign. He said it again the day he took office. And he said it again as recently as May 2013.
Thus far, public opposition to the notion of releasing terrorists into the courts or onto the streets altogether, has prevented Obama from fulfilling this promise. In order to build his case, he needs to control the messaging coming out of the GTMO proceedings and persuade the public to adopt his anti-GTMO stance. The way to do that is to simply cherry-pick a group of “friendlies” to “monitor” and report on what takes place. It’s as simple as that.
This administration has demonstrated time and time again hostility to alternative viewpoints. And this is just another in a long line of examples. Judicial Watch will continue to protest this new policy while continuing our work to bring fairness and objectivity and, yes, “respect for the rule of law” to the efforts to monitor GTMO. And we intend to do it live, not on television.
There are many ways for the government to keep secrets. And trust me, we’ve seen them all. In fact, as you may recall in one case (Judicial Watch’s 9/11 investigation), it took the government 11 years to respond to a single JW Freedom of Information Act (FOIA) request!
This flagrant stonewalling is the primary reason JW is so active in the courts. Government agencies seldom release requested records, per their legal mandate. Usually it’s a tortured process, plagued by one delay after another.
And that’s precisely what we’re seeing with investigations probing the “Fast and Furious” scandal, where the Obama administration allowed weapons to “walk” across the border into the hands of Mexican drug cartels directly resulting in the death of U.S. Border Patrol Agent Brian Terry and countless Mexican citizens.
Fast and Furious took place between September 2009 and December 2010. Yet, to this day, Attorney General Eric Holder is fighting tooth-and-nail to keep these records secret – from Judicial Watch and from Congress. (You can read all about our Fast and Furious work here.)
And so, once again, we are forced to go to court to get to the truth in the matter. This time we want to know why “settlement negotiations” between Congress and the Department of Justice (DOJ) remain, in a word, unsettled.
Specifically, on September 5, 2013, we filed a lawsuit in the U.S. District Court for the District of Columbia, against the Obama DOJ to obtain all records of communications between DOJ and the House Committee on Oversight and Government Reform relating to the settlement discussions in the Committee’s 2012 contempt of Congress lawsuit against Attorney General Eric Holder.
This contempt citation was extraordinary. It marked the first time in U.S. history a sitting Attorney General was held in contempt of Congress. So let’s take a step back and review how and why Holder received this dubious distinction and how JW ended up in court.
After press reports outed Fast and Furious, Eric Holder flatly refusal to turn over documents to Congress related to the gunrunning scandal, thereby obstructing the congressional investigation. Most of the records request related to a February 4, 2012, memo from DOJ claiming it had no knowledge of, nor did it participate in, Fast and Furious. This, of course, turned out to be a complete and utter lie and the DOJ withdrew the letter.
After the contempt citation, President Obama then stepped in to protect Holder by improperly invoking “executive privilege” to keep the records concealed. This invocation also had the effect of protecting Holder from being prosecuted for contempt, because it is the “practice” of the DOJ not prosecute contempt of Congress charges if the documents in dispute are being withheld pursuant to executive privilege claims. In other words, President Obama’s executive privilege gambit was a “get out of jail free card” for his friend and operative Eric Holder.
So all this is why the House Oversight Committee sued Holder to enforce subpoenas in its Fast and Furious probe. On March 18, 2013, after a breakdown of settlement talks between the Committee and DOJ, a federal judge ordered the two sides to enter into mediation.
Since that time, Eric Holder has been dragging out the “settlement” talks to the point where Congress has called them a “waste of everyone’s time.” And that’s why JW is now taking action to get records detailing these negotiations.
This is not the first lawsuit Judicial Watch has filed against the Obama administration seeking records related to the Fast and Furious scandal. On October 11, 2011, the organization sued the DOJ and the Bureau of Alcohol, Tobacco, and Firearms to obtain Fast and Furious records, including all records submitted to the House Oversight Committee.
On September 13, 2012, it filed a lawsuit against the DOJ after the agency denied its October 2011 FOIA request for records regarding President Obama’s claim of executive privilege after Holder’s refusal to produce records for the House Oversight Committee. But on February 15, 2013, U.S. District Judge for the District of Columbia John Bates stayed that FOIA lawsuit, relying, in part, upon the DOJ’s assertion that if the case were to move forward, it would interfere with the ongoing settlement discussions between the DOJ and the Oversight Committee.
After waiting for nearly seven months, Judicial Watch is now suing for the records of those purported settlement discussions.
Pursuant to its original FOIA request submitted on March 20, 2013, here is a description of the records we now seek:
Any and all records of communications, correspondence, and contacts between the Department of Justice and the House Committee on Oversight and Government Reform concerning or relating to a settlement in Committee on Oversight and Government Reform v. Holder, 1:12-cv-01332, U.S. District Court, District of Columbia (Washington). Such records include, but are not limited to, records of the settlement discussion themselves. The timeframe for this request is October 1, 2012 to March 20, 2013.
Eric Holder is using his legal battle with Congress to keep the American people from knowing the full truth about the Obama administration’s Fast and Furious killings and lies. The Obama gang would rather stall for time than defend the Obama’s administration secretive claims of executive privilege on Fast and Furious in court.
Observers expect the judge to rule in the next few weeks on the litigation between Holder and Congress. But given the high probability of appeal, that won’t put an end to the matter. “Those involved say it is possible the case won’t be resolved until Obama has left office,” notes Fox News; which is just fine by this president and his “top cop.” But we won’t wait for Congress and other politicians to figure where their tails are. Our litigation arguably remains the last, best hope for finally getting serious accountability on the Fast and Furious outrage.
Speaking of tricks employed by the government to keep you in the dark, here’s one for you. How about “purging” computer records and then shipping them off to avoid disclosing them to the American people? No, this is not a Hollywood government conspiracy movie. This is what evidently took place inside the Obama Department of Defense (DOD) after the raid that led to the capture and killing of Osama bin Laden.
And now, Judicial Watch is after the records detailing this suspicious record-shifting scheme.
On September 5, 2013, we filed a Freedom of Information (FOIA) lawsuit against the DOD for records relating to a 2011 directive by U.S. Special Operations Commander Adm. William McRaven to purge DOD computers of military files about the Navy SEAL raid on Osama bin Laden’s compound and transfer them to the CIA, where they could be shielded from FOIA law.
Pursuant to its June 7, 2013, FOIA request, Judicial Watch seeks access to the following records:
All records concerning, regarding, or relating to Admiral McRaven’s 2011 directive to purge USSOCOM systems of all records related to the operation leading to the death of Usama bin Laden on or about May 1, 2011.
The United States Special Operations Command (USSOCOM) acknowledged receipt of Judicial Watch’s FOIA request by a letter dated July 1, 2013. By law, a response was due by July 30, 2013. But the Pentagon hasn’t given us anything yet.
The secret move by McRaven to shield the information from public disclosure was first revealed in a single sentence of an undated draft report by the Pentagon’s inspector general (IG) examining whether the Obama administration gave special access to Hollywood executives planning the film “Zero Dark Thirty.”
According the draft report, “ADM McRaven also directed that the names and photographs associated with the raid not be released. This effort included purging the combatant command’s system of all records related to the operation and providing these records to another Government Agency.” According to an Associated Press report, the “Government Agency” was the CIA. To add to our suspicions, after press reports focused on this controversial “purge,” the reference to the document purge did not appear in the final IG report released earlier this summer. That’s right: the Pentagon “purged” the info about the “purge.”
Now, let’s take a moment to show how McRaven’s document shifting may have directly interfered with JW’s Freedom of information Act requests for these records.
The move by McRaven may have come, at least in part, in response to aggressive efforts by Judicial Watch to obtain images of the bin Laden raid that the Obama administration had refused to disclose. On May 4, 2011, Judicial Watch filed a FOIA request with the DOD seeking “all photographs and/or video recordings of Osama (Usama) bin Laden taken during and/or after the U.S. military operation in Pakistan on or about May 1, 2011.” An identical request had been filed on May 3, 2011, with the CIA. When neither the DOD nor the CIA complied with the FOIA requests, Judicial Watch, in June 2011, filed its FOIA lawsuits against both agencies. In the course of the litigation, the DOD denied that it had any documents and did not disclose that it had transferred any documents to the CIA.
My gosh, if we had known – and certainly if the court knew – about this document purge, we might have gotten a very different legal result.
But as it was, on April 26, 2012, U.S. District Court Judge James Boasberg accepted the Obama administration arguments, ruling that the images could remain secret while conceding: “Indeed, it makes sense that the more significant an event is to our nation – and the end of bin Laden’s reign of terror certainly ranks high – the more need the public has for full disclosure.” On May 21, 2013, the United States Court of Appeals for the District of Columbia affirmed the District Court decision while conceding that the documents may not have been properly classified.
On August 19, 2013, we filed a certiorari petition with the Supreme Court of the United States to review the Appeals Court ruling.
By purging DOD computers of bin Laden raid documents, this enabled DOD officials to claim that the DOD did not possess any records responsive to FOIA requests. And, as The Huffington Post points out, this “could represent a new strategy for the U.S. government to shield even it most sensitive activities from public scrutiny. (As if the government needs additional secrecy strategies.)
And what about the agency now in possession of these records, the CIA? The CIA has special authority to prevent the release of “operational files” in ways that cannot be challenged in federal courts.
That being said, there is a rule that could actually work in our favor.
Under federal rules, transferring government records from one executive agency to another must be approved in writing by the National Archives and Records Administration. According to Archives spokesperson Miriam Kleiman, the Archives was not aware of any request from USSOCOM to transfer its files to the CIA.
Folks, the courts must not allow the federal government to do end-runs around FOIA law! We can’t have federal agencies purging records from government computers to avoid disclosing them to the public. This is the very definition of secrecy and corruption. The Obama administration is in full stonewall mode over records about this purge, which raises suspicions regarding what it has to hide. This is a scandal in the making.
Until next week…
Tom Fitton, President
Judicial Watch, Inc., a conservative, non-partisan educational foundation, promotes transparency, accountability and integrity in government, politics and the law. Through its educational endeavors, Judicial Watch advocates high standards of ethics and morality in our nation's public life and seeks to ensure that political and judicial officials do not abuse the powers entrusted to them by the American people. Judicial Watch fulfills its educational mission through litigation, investigations, and public outreach.